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Mool Chand and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1948All281
AppellantMool Chand and ors.
RespondentEmperor
Excerpt:
- - if they do otherwise it is a fraud upon the act and their action is not taken in good faith. i may, however, add that it would be better if the executive authorities pass their orders of detention, where possible, before arrest and make up their mind about detention after arrest under some provision or other of the criminal procedure code as soon as possible and there should not be a delay of two or three weeks or a month in passing those orders. 17 further the words of section 11 of act iv of 1947 clearly show that the provincial government while delegating its authority had to designate the person or officer to whom it was delegating that authority......has since been released and his case need not be considered.4. the remaining three, namely, ram chand, mool chand and dataram were proceeded against under the penal law. they also remained on remand up to 16th december 1947 and i am told that a charge-sheet was submitted by the police against them on 15th december 1947. two of them, namely, mool chand and dataram are being prosecuted under section 307, pendl code, and sections 3 and 4, explosive substances act, while ram chand is being prosecuted under section 19(f), arms act.5. the contention on behalf of the applicants is that their detention is 'illegal because, in the first place, their arrest under section 151, cr.p.c., was improper and, in the second place, because the executive authorities had acted mala fide in detaining them.....
Judgment:
ORDER

Wanchoo, J.

1. This is an application by Moot Chand and others under Section Criminal P.C. These 29 persons were arrested at Roorkee in the district of Saharanpur between 23rd and 25th of November 1947. The arrests started in. this manner. An explosion is said to have taken-place in Roorkee in which one Dasoundhi is a said to have been injured. It is also said that Mool Chand applicant was arrested at or near the spot immediately after the explosion on suspicion of having been concerned in it. Dasaundhi took Mool Chand to the thana on 23rd November 1947 and made a report under Section 307, Penal Code, and Sections 3 and 4, Ex-plosive Substances Act, 6 [vi] of 1908. Then began an investigation into those specific offences. It is said that Mool Chand made certain disclosures to the police. In consequence of those disclosures and of the investigation by the police into this report of Dasaundhi, the remaining 28 applicants were arrested between the dates given by me above. Two of these others, namely, Dataram and Harpal are also said to have made certain disclosures to the police after their arrest. It is said that the remaining persons were arrested under Section 151, Criminal P.C., which provides for prevention of -an offence, if the police knows that there is a design for committing such an offence.

2. Of these 29 persons, ten were remanded for specific offences, while it is not clear how the remaining 19 remained in jail after their arrest. On the 27th November 1947 police made a report against these 19 to the District Magistrate praying that an order of detention for six months be passed against them under the U.P., Maintenance of Public Order (Temporary) Act, 4 [IV] of 1947. On this report an order was passed on 17th December 1947 against these 19 applicants under Section 3 of the Act and they were ordered to be detained for six months. They were also supplied with a copy of the police report, dated 27th November 1947. It was said to contain the grounds of their detention on the same day. Thus there was a compliance with Section 5 of the Act,

3. Of the remaining ten applicants, seven were remanded for specific crimes and the remands continued till 16th of December 1947. In their case also, a report was made on 12th December 1947 for their detention under this Act by the police. On 30th December 1947, the Addl. District Magistrate of Saharanpur passed an order under Section 3 against them. They were also served with a copy of the police report in which the grounds were given for their detention on same day. There was thus a compliance with Section 5 of the Act. Of these seven, one namely, Subhash Chandra applicant has since been released and his case need not be considered.

4. The remaining three, namely, Ram Chand, Mool Chand and Dataram were proceeded against under the penal law. They also remained on remand up to 16th December 1947 and I am told that a charge-sheet was submitted by the police against them on 15th December 1947. Two of them, namely, Mool chand and Dataram are being prosecuted under Section 307, Pendl Code, and Sections 3 and 4, Explosive Substances Act, while Ram Chand is being prosecuted under Section 19(f), Arms Act.

5. The contention on behalf of the applicants is that their detention is 'illegal because, in the first place, their arrest under Section 151, Cr.P.C., was improper and, in the second place, because the executive authorities had acted mala fide in detaining them under this Act when they found that there was no case against them under certain specific provisions of the penal law.

6. It is not necessary to go into the question whether the original arrest of the remaining twenty-six applicants besides Mool Chand, Data Ram and Ram Chand was justified under Section 151, Criminal P.C., and whether the police had know-ledge of a design on the part of the applicants to commit an offence which it was necessary to prevent by the arrest of these people. There are no materials on the record to come to a conclusion one way or the other on this point. Besides, it has been held in Basanta Chandra v. Emperor , that:

If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner.

It was suggested that this view was open to doubt in view of the remark of their Lordships of the Judicial Committee in Emperor v. Vimalabai Deshpande . In that case, however, their Lordships were referring to an order passed by the Governor of the Central Provinces after the final hearing in the Nagpur High Court. In the present case, however, the orders of detention were passed on 17th December and 80th December 1947 before the final hearing began in this Court on 2nd January 1948. Under these circumstances, the authority of the Federal Court in the case cited above stands and it will have to be seen whether on the date on which I am passing this order there is a valid order for detention of the applicants.

7. The applicants before me may be divided into three groups. The first group consists of Mool Chand, Data Ram and Ram Chanel who are being prosecuted for certain offences under the penal law. They were on remand after their arrest and a charge-sheet has been submitted against them. So far, therefore, as these three persons are concerned, their remedy is to apply for bail to the appropriate Court. Their application under Section 491, Criminal P.C. must, therefore, be dismissed on this ground alone.

8. The remaining twenty-five persons who now remain after the release of Subbash Chandra may be divided into two groups. Six of them, namely, Rup Chand, Pritam Das, Telu, Eamjee Das, Sumer Chand son of Kabul Singh and Harpal were ordered to be detained under this Act on 30th December on a report made by the police on 12th December 1947. The remaining nineteen were ordered to be detained on 17th December on a report made by the police on 27th November 1947.

9. There is no doubt that the U.P. Maintenance of Public Order (Temporary) Act IV [4] of 1947 contemplates that an order of detention should be passed by the District Magistrates before the persons concerned are arrested. It has been contended on behalf of the applicants that as the order in the case of these twenty-five was not passed before their arrest, it must be held from the mere fact, that the orders were passed later, that the executive authorities acted mala fide in passing those orders when they found that there was no case, under the ordinary penal law, against these applicants. On the other hand, it has been argued on behalf of the Crown that the mere fact that these persons were first arrested under some provision of the ordinary law and were later ordered to be detained under this Act, is not, in itself, proof of mala fides and that it is for the applicants to adduce further circum-stances or evidence to show that the executive authorities acted mala fide. I may say at once that I agree with the contention on behalf of the learned Deputy Government Advocate in this connection and that none of the authorities cited on behalf of the applicants goes as far as the argument put forward on their behalf before me. I may, briefly, notice some of these authorities to show that in each case the question of mala fides rested not merely on the fact that an order of detention had been passed after' the arrests under some provision of the ordinary law, but on certain further facts adduced before the Court which showed that the order of detention under Rules 129 and 26, Defence of India Rules, was not for the purpose mentioned in those Rules, but was for some other reason. For example, in Vimalabai Deshpande v. Emperor ('45) 32 A.I.R. 1945 Nag. 8, the arrest had been made under Rule 129, Defence of India Rules. Their Lordships remarked as follows:

If either the police or the Provincial Government desire an investigation into any offence, whether under the Penal Code or under the Defence of India Rules, then they are bound to conduct their enquiry in accordance with the provisions o the Criminal P.C. They cannot call in aid their powers of detention and under the guise of exercising these powers conduct a secret investigation into a crime. If they have information that these detenus have committed crimes or offences, they are not boufitd to investigate into them. They can rest content with detaining them under Rule 26 or 129. But if they want an investigation they must proceed in accordance with the provisions of the Criminal P.C. If they do otherwise it is a fraud upon the Act and their action is not taken in good faith.

10. It is not suggested in the case before me, that the detention is for any other purpose or for carrying on a secret investigation into some crime. It is obvious that the detention orders which had been passed on 17th and 80th December 1947 have been passed purely for the detention of these persons for the purposes mentioned in the U.P. Maintenance of Public Order (Temporary) Act, 4 [IV] of 1947 and for no other secret or collateral purpose. Another case relied upon is that in Kamla Kant v. Emperor ('44) 31 A.I.R. 1944 Pat. 354. In that case, while dealing with the case of Jogeshwar Singh, their Lordships observed as follows:

He was subsequently tried on a charge of dacoity and was convicted, but on appeal, the conviction was set aside by the Speoial Judge. This was on 20-4-1943, and long before that, on 27-10-1942, an order of detention had been made against him. From what is contained in the judgment of the learned Special Judge, it would seem that a judicial enquiry was held by a Sub-Deputy Magistrate. This was not completed until 15-11-1942, so that the order of detention was made while it was still in progress. When a man is arrested and brought up before a Court on some definite and specific charge, it seems to me very undesirable and indeed quite wrong for an order of detention to be made against him before he has been tried on the charge and his guilt or innocence finally determined.

That case obviously wag decided on its own facts which were that a judicial enquiry was already proceeding against Jogeshwar Singh and had not been concluded, when an order under the Defence of India Rules was passed. Under those circumstances, it was held that such an order was wrong and improper. In the present case, however, so far as nineteen of the applicants are concerned, there was not even an investigation against them about their association with any crime, after their arrest under Section 151, Criminal P.C. As for the remaining six, there was certainly an investigation upto a certain stage against them in connection with offences under Section 307, Penal Code, and Sections 3 and 4, Explosive Substances Act. But that was apparently dropped when the report was made against them on 12 12-1947. There was no judicial enquiry pending against any of these twenty-five persons at any time before these orders of detention were passed. Under these circumstances, the facts of this Patna case, being very different, are no authority for holding that merely because the executive authorities at a later stage pass orders of detention, they must necessarily be mala fide.

10. I may also notice another case cited on behalf of the applicants, namely Jagdish v. Emperor : AIR1946All249 . In that case what happened was that certain persons were taken into custody' under the provisions of the Criminal Procedure Code and later were detained under Rule 129, Defence of India Rules, and it was found that this was done for the purpose of facilitating the investigation of a crime under the Criminal Procedure Code. Under those circumstances, it was held that:

There can be no justification for invoking Rule 129, Defence of India Rules, in the case of a person who, whatever he may have done, was no longer even at liberty but had already been taken into custody under the provisions of the Criminal Procedure Code, and resort to the said rales for the purpose of facilitating the investigation of a crime under the Criminal Procedure Code was an abuse of them.

The facts, in the present case, are entirely different and it is not suggested that the detention of the applicants has been made for the purpose of facilitating any investigation of any crime.

11. The last case which I may notice is Leachinsky v. Christie (1946) 1946 K.B. 124. That was a case where a suit had been brought for damages for false imprisonment. Scott, L.J. remarked as follows while dealing with that matter:

An arrest must not only be on a definite charge and for the purpose of prosecuting that charge, but it must be expressly stated at the time to be on that charge. It follows, and it is a principle lying at the very root of English freedom, that if a man is arrested on one charge he is entitled to his release the moment the prosecution of that charge is abandoned. The prosecution cannot arrest on one charge, abandon their intention to proceed on that charge and then keep him in cold storage, still nominally on that charge. while they inquire into the possibility of putting forward a different charge. To do that they must first release him.

This case also does not, in my opinion, apply to the facts of the present case. There was no question here of keeping the applicants in cold storage on a nominal charge while an enquiry was proceeding into the possibility of putting forward a different charge. What had happened was that these persons were arrested under Section 151, Criminal P.C., and after they had been in jail for some time, orders of detention were passed against them. There was no intention, at any stage, of keeping them in jail nominally on one charge while enquiries were being made for put-ting forward a different charge, if possible.

12. I am, therefore, of opinion that the detention of these twenty-five applicants, other than Mool Chand, Data Ram and Ram Chand who are being detained under the specific provisions of the Criminal P.C. and Subhash Chandra who has already been released, is not mala fide. I may, however, add that it would be better if the executive authorities pass their orders of detention, where possible, before arrest and make up their mind about detention after arrest under some provision or other of the Criminal Procedure Code as soon as possible and there should not be a delay of two or three weeks or a month in passing those orders.

18. It has not been contended that there has not been a compliance with the provisions of the U.P. Maintenance of Public Order (Temporary) Act IV [4] of 1947. After the orders had been passed the reasons for detention were supplied to the applicants. It is not for this Court to go into the sufficiency or otherwise of those reasons. It is for the applicants to malie their representations to the executive authorities concerned.

14. In the end I come to the last point that has been raised, namely, whether the Additional District Magistrate had the power to pass an order of detention for six months with respect to six of the applicants, namely, Rup Chand,. Pritam Das, Telu, Ramjee Das, Sumer Chand son of Kabul Singh and Harpal. Under Section 11 of Act IV [4] of 1947, the Provincial Government car delegate its own power of detention under Section 3,

In such circumstances and under such conditions, if any, as may be specified in the order to be exercised or discharged by any officer or authority not being and officer or authority subordinate to the Central Government.

Under this section, the Provincial Government has delegated its power to the District Magistrates of the various districts within their districts. The contention, on behalf of the applicants, is that the power having been delegated to the District Magistrates it could not be exercised by the Additional District Magistrate of Saharanpur. It has been urged, on behalf of the Crown, that is view of Section 10, Sub-section (2), Criminal P.C., and Section 3(27a), General Clauses Act, x of 1897, the Additional District Magistrate could exercise' this power which had been delegated to the District Magistrates, under Section 11, Act IV of 1947. The Additional District Magistrate, in this case, has been conferred with all the powers of District Magistrate under the Criminal P.C., and under any other law for the time being in force.' Section 3, Sub-section (27a) of the General Clauses Act, X of 1897, defines Indian law as including

any law, ordinance, order, bye-law, rule or regulation passed or made at any time by any competent Legislature, authority, or person in British India.

15. It has been urged that in view of the word 'order' in Section 3, Sub-section (27a) of the General Clauses Act, this Notification of the Provincial Government amounted to an order made by an authority in British India and, therefore, the Additional District Magistrate would also have the powers of the District Magistrate under Act IV of 1947 in view of the words 'under any other law for the time being in force' used in Section 10(2), Criminal P.C.

16. I cannot agree with this argument on behalf of the Crown. It seems to me that the word 'order' in Section 3, Sub-section (27a) of the General Clauses Act, X of 1897, does not refer to an-executive order of the kind that was passed in this case empowering the District Magistrate under Section 11, Act IV of 1947. It refers to what may be called 'a species of delegated legislation.' I may illustrate the point by referring to various orders that used to be passed by the Provincial Government or the District Magistrates under Rule 81, Defence of India Rules for, say, movement of sugar, gur and various other commodities from the Province or from the districts.

17 Further the words of Section 11 of Act IV of 1947 clearly show that the Provincial Government while delegating its authority had to designate the person or officer to whom it was delegating that authority. When, therefore, by its Notification, D/- 1-8-1947, it delegated its authority to District Magistrates of particular districts, it really conferred that power on the particular person who happened to be the District Magistrate for the time being and not on anybody else. Act IV of 1947, when it provided for delegation of power under Section 11 to any officer subordinate to the Provincial Government required that the Provincial Government should exercise its mind while delegating its power to any particular per. son or officer as shown by the words 'in such circumstances and under such conditions' and if it was the intention of the Provincial Government that Addl. District Magistrates in each district should also be authorised to pass orders of detention under Section 3 of Act IV of 1947 for a period of six months there was nothing to prevent the Provincial Government from adding the words 'Additional District Magistrate' also in the Notification, dated 1-8-1947. In this connection, I may refer to the case in Prabhulal Ramalal v. Emperor ('44) 31 A.I.R. 1944 Nag. 84, where the same point arose in connection with delegation of authority under the Defence of India Act. If I may respectfully say so, I entirely agree with the reasoning of the learned Judges who decied that case. In my opinion, Section 3, Sub-section (27a) of the General Clauses Act, X of 1897, can not cover an order of this kind which is purely an executive order. In this view of the matter, these six persons are entitled to be released be cause they have been ordered to be detained by an authority which had no jurisdiction to detain them

18. I, therefore, allow the applications of Rup Chand, Pritam Das, Telu, Ramjee Das, Burner Chand son of Kabul Singh and Harpal. The applications of the remaining twenty, two are rejected. No order is passed with respect to Subhash Chandra who, I am told, has already been released.


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